Supreme Court Nominee Judge Brett Kavanaugh & Education Law

D.C. Circuit Judge Brett Kavanaugh was nominated on July 9, 2018 to the Supreme Court by President Donald Trump. Should he be confirmed, his appointment could have far reaching effects to educational entities across the country. Kavanaugh is a strong proponent of religious liberty and second amendment rights, and has issued a variety of high-profile opinions.

Kavanaugh’s Background

Kavanaugh, a former law clerk to retiring Justice Kennedy, was also an author of the Starr Report, which urged the impeachment of President Bill Clinton. After the 2000 U.S. presidential election, Kavanaugh joined President George W. Bush’s staff, where he led the administration’s effort to identify and confirm judicial nominees. In 2003, he was nominated to the Court of Appeals by President Bush. His confirmation hearings were contentious and stalled for three years before he was finally confirmed in May 2006. Judge Kavanaugh describes his judicial philosophy, saying, “A judge must be independent and must interpret the law, not make the law. A justice must interpret statutes as written and a judge must interpret the Constitution as written informed by history, and tradition, and precedent.”

Opinions

Judge Kavanaugh has one opinion involving special education. In Hester v. D.C., 505 F.3d 1283 (D.C. Cir. 2007), Judge Kavanaugh wrote the majority opinion overturning a district court’s decision granting summary judgment for a student. The Court of Appeals also directed the district court to grant defendant’s cross-motion for summary judgment. Specifically, an incarcerated special education student sued the city of Washington D.C., where he originally attended public school, alleging that the city failed to provide him free appropriate public education (“FAPE”). While the student was in a Maryland prison, Maryland provided him special education services. In his opinion, Judge Kavanaugh ultimately held that the student, a prisoner of Maryland, was not entitled to D.C.’s special education services.

Judge Kavanaugh has also authored high profile opinions involving gun control and federal grants. In Heller v. D.C., 670 F.3d 1244 (D.C. Cir. 2011), he wrote a dissenting opinion, stating that he believes, under the law, semi-automatic rifles and handguns are constitutionally protected.

In addition, in Camden County Council on Econ. Opportunity v. U.S. Dept. of Health & Human Services, 586 F.3d 992 (D.C. Cir. 2009), Judge Kavanaugh wrote the majority opinion finding that the Department of Health and Human Services could terminate a county’s Head Start grant which provided federal funding for pre-school services to low-income children. In Camden, he determined that because the county failed to correct a safety-related deficiency, the Department could rightfully terminate the grant.

Judge Kavanaugh has an extensive history of supporting religious liberty. In the 1990s, he chaired the Federalist Society’s Religious Liberty practice group and served as pro bono counsel on cases defending religious freedom. While on the bench, he wrote a dissent in Priests for Life v. HHS and concluded that the Affordable Care Act’s contraceptive mandate violated the rights of religious organizations. See Priests for Life v. U.S. Dep’t of Health & Human Servs., 808 F.3d 1, 14 (D.C. Cir. 2015). School voucher advocates believe that Judge Kavanaugh could change legal precedent regarding religious school vouchers given his record on religious liberty. While there are currently no school voucher cases pending before the Supreme Court, relevant cases are moving through the lower federal courts.

Happening Now

Judge Kavanaugh has been making “courtesy visits” in the Senate, offering senators a chance to quiz Judge Kavanaugh on his judicial philosophy, past rulings, and public statements. If confirmed, school districts can expect Judge Kavanaugh to be cautious towards federal education spending and be a strong supporter of the Second Amendment. Husch Blackwell’s Education Team will continue to monitor his confirmation process and his judicial opinions should he be confirmed and take the bench.

Aleks regularly counsels education clients on litigation, investigation, and compliance issues arising from a wide range of civil rights and educational funding issues, such as Title IV, Title IX, the Individuals with Disabilities Education Act (IDEA), Section 504 of the Rehabilitation Act, the Family Educational Records Privacy Act (FERPA), the Elementary and Secondary Education Act (ESEA), the rights of English language learners and immigrant students, school desegregation, and the design and defense of measures to promote equal access and diversity. She also conducts investigations in response to internal and Office of Civil Rights (OCR) complaints following alleged student or employee misconduct involving criminal activity, Title IX sexual harassment, race, age, and national origin discrimination.

Mary Kate represents clients in a wide variety of industries, including healthcare, education, manufacturing, and real estate. She has experience in all stages of litigation, including fact investigations, initial pleadings, discovery, depositions, and trial strategy. Mary Kate focuses her practice on the defense of medical malpractice claims and the defense of commercial claims, including contract disputes and business torts on behalf of pharmacies and pharmacy benefit managers.

Theresa focuses her practice on commercial litigation. Theresa represents clients in a wide variety of industries, including education, financial services, healthcare, and manufacturing. She has experience in all stages of litigation, including fact investigations, initial pleadings, dispositive motions, motions in limine, discovery, depositions, and trial strategy.

About our K-12 Education Practice

Educational institutions operate in an increasingly complex and rapidly changing legal and regulatory environment. With so much at stake, more than 150 clients turn to Husch Blackwell’s education attorneys for legal guidance so that they can concentrate on serving their students and communities effectively and efficiently. Our education attorneys understand the unique needs of educational institutions and leverage this experience to provide effective legal counsel in a cost-effective manner.